Scotus Nomination Process

We Have A Name…
What’s Next?

Navigating the nomination process for the next potential Supreme Court Justice.

The Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court…”

The Constitution’s Appointments Clause is silent about when nominations should be made for the Supreme Court of the United States (SCOTUS) and says nothing about timing of SCOTUS nominations during election years, NOR qualities of a nominee – they don’t even have to have a legal degree.

STEP-BY-STEP PROCESS

• Senate receives Pres’s nomination.
• Senate Judiciary Committee authorizes investigation & holds public hearings
• Cmte. votes whether to recommend nominee to full Senate. If votes in favor, nomination goes to full Senate.
• Full Senate debates the nominee.
• 51 votes needed to stop debate and move to the vote.
• 51 votes required to confirm the nominee.

THE MATH

A simple majority will approve the nominee, clearing the path to the court.

The Republicans control the Senate by a 53-47 margin.

Republicans can lose up to 3 votes and the nominee could still be confirmed because Vice President Mike Pence gets the tie-breaking vote in a 50-50 scenario.

BIG PICTURE

• Historically, most nominees (77%) are confirmed regardless of the party of the President or majority in the Senate (not all are confirmed by a large majority).
• In recent years, the nomination process has taken approx. 70 days.
• If we look at the confirmation process for sitting Justices, we see a range in timelines: Chief Justice Roberts was confirmed in 23 days. Justice Clarence Thomas was confirmed in 99 days.

While many look to Election Day as a deadline for the nominee’s approval, the current Senate can vote anytime before the next Congress takes office on January 3, 2021. That said, this is “the closest high court opening to a presidential election in more than 150 years,” according to The Washington Post.